Considered
and decided by Willis,
Presiding Judge; Kalitowski,
Judge; and Stoneburner,
Judge.

U N P U B L I S H E D O P I N I O N

STONEBURNER, Judge

Appellant challenges denial of his
petition for postconviction relief to correct a sentence under Minn. R. Crim.
P. 27.03, subd. 9. Because the district
court erred in the order of sentencing, which affected the computation of
appellant’s criminal-history score and the length of the felony sentence
imposed, we reverse and remand for resentencing.

FACTS

Appellant John Frederick Kier was convicted of first-degree
felony refusal to test in violation of Minn. Stat. § 169A.20, subd. 2, and .24
(2002); driving after cancellation in violation of Minn. Stat. § 171.24, subd.
5 (2002); possession of an open bottle in violation of Minn. Stat. § 169A.35,
subd. 2 (2002); and illegal transportation of firearms in violation of Minn.
Stat. § 97B.045 (2002). Based on Kier’s
criminal-history score of five, the district court imposed an executed sentence
of 66 months in prison for felony refusal to test. The district court imposed a consecutive
executed 12-month sentence for gross-misdemeanor driving after cancellation,
under Minn. Stat. § 169A.28, subd. 1(3) (2002), which requires consecutive
sentencing for “a violation of section 169A.20 and another offense arising out
of a single course of conduct that is listed in subdivision 2, paragraph (e)[1],
when the person has five or more qualified prior impaired driving incidents
within the past ten years.” Kier was
sentenced to 90-day concurrent sentences for open-bottle and illegal
transportation of firearms.

On direct appeal, Kier challenged
the probable cause for his arrest; execution, rather than stay, of the felony
sentence; and the requirement that he serve the gross-misdemeanor sentence in
prison, but he failed to challenge the order in which the consecutive sentences
were imposed. This court affirmed on all
issues raised, and the supreme court denied review. State
v. Kier, 678 N.W.2d 672 (Minn. App. 2004), review denied (Minn.
June 15, 2004) (Kier I). Kier then petitioned for postconviction
relief supported by a memorandum from the public defender, arguing that Kier is
entitled to correction of his sentence under Minn. R. Crim. P. 27.03, subd.
9. Specifically, Kier argued that the Minnesota
Sentencing Guidelines require the felony sentence to be imposed consecutively
to the gross-misdemeanor sentence and that his criminal-history score be
reduced for computation of the duration of the felony sentence. The district court considered the petition on
the merits and denied relief, noting that the mandatory consecutive sentencing
provision of Minn. Stat. § 168A.28 is not addressed by the sentencing
guidelines and concluding that application of the guidelines requirements for
calculation of criminal-history scores for presumptive consecutive sentences
“does not make sense within the consecutive sentencing mandate of Minn. Stat. §
169A.28.” This appeal followed.

D
E C I S I O N

I.Standard of
review

An appeal from an order denying a
motion for sentence correction may be treated as an appeal from denial of
postconviction relief. State v. Stutleberg, 435 N.W.2d 632, 633
(Minn. App. 1989) (treating “post-conviction
proceeding” as used in ABA standards on postconviction relief, which were
adopted by supreme court in Tyson v. State,
298 Minn. 559, 214 N.W. 2d 461 (1974), overruled
on different grounds by State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737
(1976), as broad enough to encompass a motion under Minn. R. Crim. P. 27.03,
subd. 9, for purposes of discussion of whether Stutleberg’s sentencing
challenge was procedurally barred). An
appellate court will “afford great deference to a district court’s findings of
fact and will not reverse” a decision on postconviction relief absent clearly
erroneous findings or an abuse of discretion.
Dukes v. State,621 N.W.2d 246, 251 (Minn. 2001).
Motions for sentence correction are committed to the district court’s
discretion and will be reversed only when discretion is not properly exercised
and the sentence is unauthorized by law.
State v. Cook, 617 N.W.2d 417,
419 (Minn. App. 2000), review denied
(Minn. Nov.
21, 2000).

II.Are Kier’s claims
procedurally barred?

A
postconviction court will not consider matters that were either raised in a
direct appeal or known at the time of direct appeal and not raised. Knaffla,
309 Minn. at
252, 243 N.W. 2d at 741. The Knaffla rule applies to matters the
petitioner should have known about at the time of direct appeal. Black
v. State, 560 N.W.2d 83, 85 (Minn.
1997). There are two exceptions to the
rule: (1) a claim so novel that its legal basis was not reasonably available on
direct appeal and (2) “where the interests of fairness require relief” and the
claim is one that the petitioner did not “deliberately and inexcusably” fail to
raise on direct appeal. Powers v. State, 695 N.W.2d 371, 374 (Minn. 2005). “Claims decided in the interests of fairness
and justice also require that the claims have substantive merit.” Id.

Kier does not argue that his claim
falls within one of the Knaffla
exceptions, but argues that he is entitled to consideration of his claim on the
merits, citing Stutelberg, 435 N.W.2d
at 636, in which this court granted review of a claim that affected sentencing
out of concern that no reviewing court had ever reached the merits of the issue
raised.[2] We concur with the district court’s
observation that “[t]he circumstances under which Knaffla applies to bar a post-conviction proceeding to correct a
sentencing error is not clear.” Although
Kier, unlike Stutelberg, has received review of his sentence on the merits by
the district court, we conclude that the district court’s review of the merits
warrants appellate review rather than dismissal on procedural grounds.[3] In the interest of justice, we will review Kier’s
claim on the merits.

In
Kier I,we noted that the presumptive duration of Kier’s sentence, “like
all sentences in Minnesota,
is controlled not only by relevant statutory mandates, but also by the
Minnesota Sentencing Guidelines.” 678
N.W.2d at 676-77. In State v. Holmes, 701 N.W.2d 267, 272-73
(Minn. App. 2005),[4]review granted (Minn. Oct. 26, 2005), we held that although
the Minnesota Sentencing Guidelines do not expressly address the mandatory
consecutive sentences required by Minn. Stat. § 169A.28, consecutive sentences
under Minn. Stat. § 169A.28 are “presumptive” consecutive sentences under the
guidelines and are not a departure from the guidelines. We further held that the guidelines apply to
such sentences. Id. Therefore,
the duration of a consecutive felony sentence imposed under Minn. Stat. §
169A.28 is calculated using a criminal-history score of one or the mandatory
minimum for the offense, whichever is greater.
Id.; see
Minn. Sent. Guidelines II.F. and cmt. II.F.02 (providing for reduction of
criminal-history score to one for each presumptive consecutive offense that is
sentenced consecutive to another offense).

Minn. Sent. Guidelines II.F also requires
that consecutive sentences must be imposed in the order in which the offenses
occurred. Therefore, Kier is correct
that the sentence for felony refusal to test should have been imposed
consecutively to the sentence for gross-misdemeanor driving after cancellation,
because the driving-after cancellation offense occurred prior to his refusal to
test. Because the felony sentence should
have been imposed consecutively to the gross-misdemeanor sentence, the duration
of the felony sentence should have been determined using a criminal-history
score of one. Based on a criminal-history
score of one, the presumptive duration of Kier’s felony sentence is 42 months,
which, imposed consecutively to the 12-month gross-misdemeanor sentence,
results in an aggregate sentence of 54 months.
But, in this case, concurrent sentencing of Kier’s gross-misdemeanor and
felony convictions would result in a presumptive sentence of 66 months. Because 54 months is less time in prison than
would result from concurrent sentencing, the guidelines further provide that
the presumptive sentence is concurrent sentencing. See Minn. Sent. Guidelines
II.F (providing that if the total time to serve in prison under the scheme of
determining the duration of a presumptive consecutive sentence would be longer
if a concurrent sentence is imposed, “a concurrent sentenceis presumptive”).

We recognize that imposing a
concurrent sentence negates the mandatory consecutive-sentencing language of
the statute, but we agree with the state that the legislature’s purpose in
mandating consecutive sentences under Minn. Stat. § 169A.28 was to increase,
not decrease, the length of sentences for some offenders. Clearly the legislature did not intend that
an offender such as Kier, who has five prior qualifying offenses, would benefit
by receiving a reduced sentence through consecutive sentencing. We conclude, therefore, that under the unique
circumstances of this case, in order to best satisfy the legislative intent
without violating the carefully constructed scheme of the sentencing
guidelines, the correct sentence for Kier is concurrent sentencing of the gross
misdemeanor and felony, resulting in a 66-month aggregate sentence. The sentences imposed by the district court
are vacated, and the matter is remanded for resentencing consistent with this
opinion.

[3]The state also argues that the law of the case
bars review of this claim, noting that in appellant’s direct appeal we stated
that the guidelines do not apply to gross misdemeanors. See
Kier I,678 N.W.2d at 677. But Kier’s claim involves application of the
guidelines to his felony sentence, not his gross-misdemeanor sentence, so the
state’s law-of-the-case argument is without merit.

[4]Holmes was released after the postconviction court had denied
Kier’s petition.